Hayes v. Derwinski

1 Vet. App. 186, 1991 U.S. Vet. App. LEXIS 23, 1991 WL 146402
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 21, 1991
DocketNo. 90-168
StatusPublished
Cited by4 cases

This text of 1 Vet. App. 186 (Hayes v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayes v. Derwinski, 1 Vet. App. 186, 1991 U.S. Vet. App. LEXIS 23, 1991 WL 146402 (Cal. 1991).

Opinion

KRAMER, Associate Judge:

Appellant, Mildred M. Hayes, brings this appeal claiming entitlement to accrued benefits due her late husband, William C. Hayes. The Board of Veterans’ Appeals (BVA) denied the appellants’ claim on the grounds that there was insufficient evidence of record at the time of William Hayes’ death to demonstrate entitlement to an increase in his disability rating. As a result of ambiguities between the BVA decision and the evidence of record, we remand this case to the BVA for redetermi-nation and an adequate statement of the reasons or bases supporting its decision.

I.

The appellants’ late spouse was a World War II veteran with a long history of cancer and cancer-related medical problems dating back to the discovery of a tumor in his right upper mediastinum in 1944. In early 1945 it was discovered that he had affected cervical lymph nodes and as a result underwent radiation therapy to his right neck which caused considerable tissue necrosis in that region. By 1987 service connection had been established for the following disabilities: Hodgkin’s disease with lobectomy of the upper lobe of the right lung with rib resection and adenocar-cinoma of the left breast rated as 60% disabling; the residuals of nitrogen mustard therapy with right lower extremity weakness rated as 10% disabling; X-ray bum scar of the lateral neck with limitation of motion rated as 10% disabling; and hypothyroidism and status post squamous cell carcinoma of the neck rated as noncom-pensable. His combined disability rating as of June 1987 was 70%.

On June 3,1987, the veteran choked on a piece of food which had lodged in his throat while he was eating. Although he was rescued with the Heimlich maneuver shortly after losing consciousness, the veteran continued to have trouble swallowing after that time. As a result, he subsequently underwent an examination of his swallowing process later that month which revealed a narrowing of the upper esophagus. The veteran’s doctor at the time, Dr. John Cook, then referred him to Dr. Thomas Gates, stating in his letter of referral, “[t]his [area of narrowing] is right under an area of maximal radiation and the concern for development of squamous meta-plasia/carcinoma is obvious.” R. at 34.

After Dr. Gates’ unsuccessful attempt to perform an esophagoscopy with a flexible endoscope, the veteran was admitted to the hospital for a rigid endoscope examination and biopsy of the affected area. Despite encountering an ulcerated lesion and thickening of the esophagus wall, the rigid endo[188]*188scope examination failed to discover any foreign masses. It was also reported that the biopsies obtained from the veteran’s esophagus were negative. As a result, it was then decided to have the veteran undergo dilations of the esophagus in an attempt to improve his swallowing ability.

These dilations, however, caused the veteran to have a substantial systemic reaction requiring medical treatment. Although the dilations significantly improved the veteran’s ability to swallow, his reactions to them caused Dr. Cook to become worried that the esophageal lesion was infected, and he subsequently discussed with the veteran the possibility that the lesion could be cancerous. R. at 43.

From this point onward, the veteran’s medical condition continued to worsen. On November 9, 1987, he filed an informal claim with the Veterans’ Administration (now the Department of Veterans Affairs) (VA) for an increase in his disability rating. In support of this claim he sent the VA medical evidence relating to the choking incident and period subsequent thereto discussed above. This evidence was received by the VA on January 21, 1988. Although the lesion was diagnosed as cancerous sometime in mid-December 1987, the record is unclear whether evidence pertaining to this cancer diagnosis was received by the VA before the veteran’s death. See infra. Nevertheless, the VA later stated in the Statement of the Case (SOC) that it had

received medical evidence ... showing the veteran was treated for an esophageal stricture and carcinoma of the esophagus that was felt to be the result of radiation treatment for the service connected Hodgkin’s disease.

R. at 81. The VA attempted to schedule a VA examination for the veteran, but he died before one could be held. His death certificate listed the immediate cause of death as cardiac arrest due to coronary heart disease. It also listed the esophageal cancer as a “significant condition contributing to death.” R. at 44.

After the veteran’s death on February 20, 1988, the appellant filed a formal claim for accrued benefits with the VA on the grounds that the veteran’s disability rating should have been 100% commencing with the onset of the esophageal cancer in June 1987. (In support of this claim the appellant also submitted additional medical evidence pertaining to the diagnosis and treatment of the veteran’s cancer which was received by the VA after his death. As our holding makes it unnecessary to do so, however, the Court will not address the issue of whether 38 U.S.C. § 3021 (1988) mandates or precludes the consideration of this evidence by the BVA. See infra.) The Roanoke, Virginia, VA Regional Office denied the appellant’s claim on the grounds that there was insufficient evidence on file at the date of the veteran’s death to establish entitlement to an increased disability rating. The appellant then appealed to the BVA.

On February 2,1990, the BVA denied the appellant’s claim. After reviewing the evidence on file at the date of the veteran’s death, the BVA stated:

DISCUSSION AND EVALUATION
The evidence of record at the time of the veteran’s death relates to the diagnosis and treatment for adenocarcinoma of the esophagus and a paraesophageal abscess. That evidence does not show that the veteran’s service connected disorders had increased in severity during the year prior to his death; therefore, the Board finds that entitlement to accrued benefits is not warranted.

William C. Hayes, loc. no. 004561 at 3 (BVA Feb. 2, 1990). Apparently included in the evidence the BVA reviewed in coming to its decision (as listed in the “Evidence” section of the BVA decision) were the veteran’s death certificate listing the esophageal cancer as a condition contributing to his death, and also

a February 1988 letter, [reporting] that the veteran had adenocarcinoma of the esophagus and a paraesophageal abscess.

Hayes, loc. no. 004561 at 3. Dissatisfied with this decision, the appellant then perfected an appeal with this Court.

[189]*189II.

Congress has provided that a veteran’s surviving spouse may receive “accrued benefits” consisting of up to one year of the veteran’s due but unpaid benefits. 38 U.S.C. § 3021 (1988). In order to receive these benefits the spouse must show that the veteran had been entitled to the benefits either as the result of a prior BYA decision, or as the result of “evidence in the [veteran’s claim] file at date of death....” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blackburn v. Brown
4 Vet. App. 395 (Veterans Claims, 1993)
Hayes v. Brown
4 Vet. App. 353 (Veterans Claims, 1993)
Simon v. Derwinski
2 Vet. App. 621 (Veterans Claims, 1992)
Flescher v. Derwinski
2 Vet. App. 473 (Veterans Claims, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 186, 1991 U.S. Vet. App. LEXIS 23, 1991 WL 146402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-derwinski-cavc-1991.